International Arbitration Flashcards
Scottish case law in respect of arbitration and conflict of laws?
Hamlyn & Co vs Talisker Distillery
(1894, House of Lords)
What was the significance of the Hamlyn & Co vs Talisker Distillery ruling (1894)?
Conflict of laws/jurisdictions
In short, that the intention of the contract be honoured.
Specifically, the arbitration clause included was not valid under Scots law but perfectly valid under English law and therefore was upheld.
There is specifically a validation principle - see also Enka vs Chubb [2020]
What was the official ruling of Hamlyn & Co vs Talisker Distillery?
*Where a personal contract is entered into
between persons residing in different countries where different systems of law prevail,
the intention of the parties as expressed or implied in the contract
will determine the system by which the whole or any part of the contract
is to be interpreted and governed.*
What is the New York Convention?
An international treaty governing the recognition and enforcement of foreign arbitral awards.
What are the options to enforce an arbitral award?
** Revisit for international?**
1. With an order from the court (sheriff or Court of Session) as per section 12 of the Arbitration (Scotland) Act 2010
- Under the New York Convention
How many countries are party to the New York Convention?
172 nations.
What is the seat of arbitration?
- A legal concept referring to the jurisdiction in which the arbitration is deemed to take place.
- It need not be located in the jurisdiction whose law governs the substance of the dispute.
What is the difference between the seat of arbitration and the place of arbitration?
Seat of arbitration is a legal concept and defines the jurisdiction that governs the entire arbitral procedure.
The place of arbitration is merely geographical.
What are the preferred cities in which to seat international arbitration?
London
Singapore
Hong Kong
Paris
Geneva, New York
https://www.acerislaw.com/2021-international-arbitration-survey-adapting-arbitration-to-a-changing-world/
When agreeing a seat of arbitration, what should the parties be mindful of?
In addition to neutrality, parties should always be mindful to consider a seat:
(i) whose courts are generally familiar or “acquainted with the concept of arbitration”;
(ii) whose jurisdiction and laws are arbitration-friendly and supportive to the arbitration process; and
(iii) that is a signatory to the New York Convention.
(iv) Language- parties may want to arbitrate in their own language.
What is the controversy re determining the seat of arbitration in India?
Under section 20 of the
Indian Arbitration Act (1996)
the parties have the right to agree the place of arbitration but there are
no provisions for the seat of arbitration.
This has led to difficulties with arbitrations located outside India.
In which seats is arbitration conducted under Shari’a Law?
Riyadh (Saudia Arabia)
Iran, Iraq, Indonesia etc.
What is UNCITRAL Model Law?
The UNCITRAL Model Law provides a pattern that law-makers in national governments can adopt as part of their domestic legislation on arbitration.
What is UNCITRAL an acronym for?
United Nations Commission on International Trade Law
Who are UNCITRAL Model Law on International Commercial Arbitration (1985) and the UNCITRAL Arbitration Rules directed at?
In short: the Model Law is directed at States, while the Arbitration Rules are directed at potential (or actual) parties to a dispute.
Longer answer: The UNCITRAL Model Law provides a pattern that law-makers in national governments can adopt as part of their domestic legislation on arbitration. The UNCITRAL Arbitration Rules, on the other hand, are selected by parties either as part of their contract, or after a dispute arises, to govern the conduct of an arbitration intended to resolve a dispute or disputes between themselves
